This matter is before the Court on Plaintiffs' Amended Motion
for Preliminary
Injunction and Defendant's Motion to Dismiss or Alternatively for
Summary Judgment.*fn1 Based on the briefs in support of those
motions, the oppositions and replies thereto, the parties' oral
arguments, and the supplemental briefs filed in response to
recent legislation, the Court finds: 1) that only the individual
plaintiffs have standing, and therefore, the Inspector General's
Motion to Dismiss will be granted with respect to the
organizational plaintiff; and 2) that, in light of a recent
amendment to the Inspector General Act of 1978, Congress has
provided the Inspector General of the Department of
Transportation the authority to investigate motor carrier
compliance with safety regulations.

I. Background

Plaintiffs are a number of named motor carriers and a
not-for-profit corporation representing other unnamed motor
carriers. Pursuant to 49 U.S.C. § 104 (1994), motor carriers are
regulated by the Federal Highway Administration ("FHWA") of the
U.S. Department of Transportation ("DOT"). The FHWA's
responsibilities include investigating motor carriers' compliance
with the Motor Carrier Safety Act of 1984, 49 U.S.C. § 31101-31504
("MCSA"), and the Federal Motor Carrier Safety
Regulations, 49 C.F.R. § 350.1-399.207 (1998) ("FMC Safety
Regulations"). This case, however, does not arise out of the
FHWA's investigative conduct. Rather, this case arises out of
compliance investigations that are conducted by the Inspector
General of DOT.

Although the FHWA's Office of Motor Carriers ("OMC") conducts
regulatory compliance reviews on motor carriers, the Inspector
General's office is also conducting criminal investigations of
certain carriers. As it currently is implemented, the enforcement
process allows OMC to conduct its compliance reviews and then
refer egregious violators to the Inspector General for
investigation. The Inspector General asserts that his
investigations differ from those of OMC because the
investigations focus on criminal conduct. The criminal nature of
the Inspector General's investigation permits him to utilize a
number of investigative techniques unavailable to OMC, for
example, search warrants and seizure of documents.*fn2 In
furtherance of his current investigations, the Inspector General
has issued subpoenas, obtained search warrants, and effected
those warrants on several of the plaintiffs' premises. Pursuant
to these warrants, the Inspector General's office has seized some
of the Plaintiffs' property. Plaintiffs seek a declaration, and
injunctive relief pursuant to that declaration, that the
Inspector General has exceeded the scope of his authority under
the Inspector General Act of 1978, 5 U.S.C. app. 3 §§ 1-12 (1994)
("Inspector General Act" or the "Act").

The Inspector General has raised a number of arguments in
defense of his investigatory conduct. First, the Inspector
General claims that Plaintiffs lack standing to pursue this case.
Second, the Inspector General argues that he has authority under
several provisions of the Inspector General Act to investigate
motor carrier compliance with DOT safety regulations. Finally,
the Inspector General asserts that recent legislation has
provided his office with the requisite authority to conduct such
investigations. The Court addresses these arguments in turn.

II. Standing

As a preliminary matter, Defendant alleges that Plaintiffs lack
standing to challenge the Inspector General's investigatory
conduct. The case or controversy requirement of Article III of
the U.S. Constitution requires a plaintiff to show: 1) that he
suffered "injury in fact"; 2) that the injury be "fairly
traceable to the challenged action of the defendant"; and 3) that
the injury will be "redressed by a favorable decision." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992); see Animal Legal Defense Fund, Inc. v.
Glickman, 204 F.3d 229 (D.C.Cir. 2000). These requirements apply
regardless of whether the plaintiff is an individual or an
organization. See Spann v. Colonial Village, Inc., 899 F.2d 24,
27 (D.C.Cir. 1990) ("An organization has standing on its own
behalf if it meets the same standing test that applies to
individuals."). The Plaintiffs claim injury from the Inspector
General's current investigation of several companies, and
possible investigation of others in the future. Only five
plaintiffs are currently being investigated by the Inspector
General. The other plaintiff, TUFS, is an organization seeking to
assist the five individual plaintiffs in representing other
similarly situated motor carriers. Collectively, the plaintiffs
seek class certification.

The Inspector General's investigations of the Plaintiffs
involve searches of their premises and seizure of their business
records. Plaintiffs allege that the Inspector General's searches
of their premises disrupts their daily business, thereby costing
them money. Similarly, Plaintiffs claim that by seizing their
business records, the Inspector General, in essence, puts them
out of business. In addition, the Inspector General interrogates
the Plaintiffs' current and former employees, and therefore,
drivers are reluctant to work for the Plaintiffs. Such
investigative conduct surely creates an injury. As the Inspector
General stated: "The only carriers that have suffered injury that
could give them standing . . . are those that are actually under
criminal investigation and have suffered some arguably adverse
action." (Def.'s Mot.Dismiss at 7.)

Although investigative conduct, i.e., subpoenas, searches,
and seizures, may create an injury to Plaintiffs, that injury
does not arise until the conduct takes place. Further, judicial
review should be conducted at the time an agency attempts to act,
not when it simply indicates an intent to act. The Plaintiffs
claim that they have suffered "injury in fact" because the
Inspector General is conducting raids of their premises, seizing
documents, interrogating employees and customers, and, in
general, putting them out of business. For example, the Inspector
General conducted a raid on Lone Wolf and K & C trucking, the
facts of which were submitted in an amended complaint that added
Lone Wolf and K & C as parties.

These raids were conducted in October 1998, after the FHWA
attempted to subpoena documents from the companies and
encountered opposition from the companies' attorney. Plaintiffs
allege that this search was done in response to their challenges
to the FHWA's authority to investigate. As described by the
Plaintiffs, the force involved in the raid "included
approximately 36 law enforcement vehicles and more than 40 law
enforcement officers, mostly in combat dress and heavily armed."
(Pl.'s Mot.Prelim.Inj. at 10.) The law enforcement officials then
confined the employees and interrogated them individually. See
id. "Officers acting at the request of an agent of the IG have
seized all operating records of Lone Wolf and K & C, including
computer software necessary for continuing operations." Id. at
12. The other individual Plaintiffs have also been subjected to
similar criminal investigations conducted by the Inspector
General.

TUFS, however, has not sufficiently alleged that its
organization has suffered an injury. An organization can show
injury in fact by "point[ing] to a `concrete and demonstrable
injury to [its] activities,' not `simply a setback to the
organization's abstract social interests.'" Id. (quoting
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct.
1114, 71 L.Ed.2d 214 (1982)). "[A]n organization establishes
Article III injury if it alleges that purportedly illegal action
increases the resources the group must devote to programs
independent of its suit challenging the action." Id. TUFS has
made no allegations of this sort. TUFS merely claims that its
members are subject to a common regulatory scheme. Nor does TUFS
claim that any of its members has suffered or is about to suffer
injury because of a possible Inspector General investigation
beyond the general allegation that the Inspector General might
someday choose to investigate a member company. "Since Article
III prohibits federal courts from recognizing injuries that are
neither `actual' nor `imminent,' we have no authority to reach
the claim." American Trucking Ass'ns, 166 F.3d at 386.*fn3

III. Standard of Review

A. Jurisdiction

Plaintiffs bring their suit based on this Court's
jurisdictional grant of authority in 28 U.S.C. § 1331, the
federal question statute. This jurisdiction is premised on the
Court's authority to determine whether federal officials are
acting within the scope of their statutory authority or ultra
vires — that is, "without any authority to act on subject,"
BLACK'S LAW DICTIONARY 1522 (6th ed. 1990). Plaintiffs do not
rely on the Administrative Procedures Act, 5 U.S.C. § 701-706
(1994), and the Inspector General Act does not provide an
administrative review provision.*fn4 "If a plaintiff is unable
to bring his case predicated on either a specific or a general
statutory review provision, he may still be able to institute a
non-statutory review action." Chamber of Commerce of the United
States v. Reich, 74 F.3d 1322, 1327 (D.C.Cir. 1996). "Nothing in
the subsequent enactment of the APA altered the McAnnulty
doctrine of review [holding that `acts of all [governmental']
officers must be justified by some law, and in case an official
violates the law to the injury of an individual the courts
generally have jurisdiction to grant relief, American School of
Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 23 S.Ct. 33, 47
L.Ed. 90 (1902)]. . . . It does not repeal the review of ultra
vires actions recognized long before, in McAnnulty." Dart v.
United States, 848 F.2d 217, 224 (D.C.Cir. 1988), quoted in
Reich, 74 F.3d at 1328. Thus, this Court has jurisdiction to
review whether the Inspector General has acted ultra vires.

Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED.R.CIV.P. 56(c). A party is
entitled to summary judgment if the record, viewed in the light
most favorable to the nonmoving party, reveals that there is no
genuine issue as to any material fact. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); United States v. Spicer, 57 F.3d 1152, 1159-60
(D.C.Cir. 1995). The nonmoving party, however, "must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Both parties agree that the essential facts of this case are not
in dispute. Therefore, summary judgment is appropriate.

In addition to the specific investigation, enforcement, and
penalty provisions in the MCSA, the FHWA has been delegated the
"special authority" granted to the Secretary. See 49 U.S.C. § 501-526
. The Secretary's "special authority" includes the
authority: 1) to subpoena witnesses and records, see id. §
502(d); 2) "on demand and display of proper credentials inspect
the equipment of a carrier . . . and inspect and copy any record
of a carrier," id. § 504(c)(1)-(2); and 3) to "begin an
investigation under this chapter on the initiative of the
Secretary or on complaint," id. § 506(a).

The FHWA is also authorized to enforce the provisions by
bringing a civil action on its own, or requesting the Attorney
General to enforce the MCSA or a regulation or order of the
Secretary. See id. § 507(a)(b). The Attorney General can also
prosecute a person violating the statute or a regulation. See
id. § 507(b). In addition to investigative and enforcement
authority, the "special authority" provisions also prescribe
civil and criminal penalties for general violations, see id. §
521, reporting and record keeping violations, see id. § 522,
evasion of regulation of motor carriers, see id. § 524,
disobeying subpoenas, see id. § 525, and "general criminal
penalt[ies] when [a] specific penalty [is] not provided," id. §
526.

It is clear that Congress has created a comprehensive
administrative scheme for regulating motor carrier compliance
with the MCSA and the FMC Safety Regulations. This scheme
authorizes the DOT or its agents to investigate carriers to
ensure compliance with regulations. Furthermore, it imposes civil
and criminal penalties on motor carriers who fail to comply or
who are found to have violated a regulation. Nowhere in Title 49
has Congress limited the DOT's ability to conduct investigations
into criminal violations of motor carrier safety regulations.
Rather, the inclusion of criminal penalties, as well as the
provision requiring the Attorney General to prosecute a violator
upon the Secretary's request, strongly indicate that Congress
envisioned that DOT would conduct criminal investigations.

The legislative history declares that the "purpose of this
legislation is . . . to consolidate existing auditing and
investigative resources to more effectively combat fraud, abuse,
waste and mismanagement in the programs and operations" of
certain federal agencies. S.REP. No. 95-1071, at 1. To this end,
auditing and investigating resources were consolidated in an
independent officer responsible for auditing and investigating
programs and operations of his particular agency for the purpose
of promoting economy and efficiency and combating fraud, abuse,
waste and mismanagement. See 5 U.S.C. app. 3 &sect;&sect; 2(1), (2)(B);
see also NASA v. Federal Labor Relations Auth., 527 U.S. 229,
119 S.Ct. 1979, 1992, 144 L.Ed.2d 258 ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.